THE CITY OF CARDIFF COUNCIL AGENDA ITEM: 10 CYNGOR … · 9. The Cardiff and the Vale Deprivation of Liberty Safeguards (DoLS) Mental Capacity Act Team has been operational since

THE CITY OF CARDIFF COUNCIL AGENDA ITEM 10 CYNGOR DINAS CAERDYDD

COMMUNITY AND ADULT SERVICES SCRUTINY COMMITTEE

7th January 2015 DEPRIVATION OF LIBERTY STANDARDS ndash Briefing Report Purpose of Report 1 To provide Members with a copy of the report which went to Cabinet 11th

December 2014 attached at Appendix A and enable Members to consider

whether further scrutiny is required

2 The Cabinet Report attached at Appendix A provides an overview of the recent

Supreme Court ruling which widens the scope of application of the need to carry

out assessments regarding deprivation of liberty (DoL) The ruling means that

there are more people in Cardiff who require an assessment to determine

whether the legal conditions are met to authorise their care arrangements that

deprive them of their liberty

3 The Cabinet Report at point 18 Appendix A highlights that

lsquoIn common with other local authorities across England and Wales Health amp Social Care services in the City of Cardiff has not been able to ensure that these arrangements have been put in place with immediate effect However the service has listed all those to whom this new ruling applies and has prioritised people for reassessment DoL Assessment and potential applications to the Court of Protection Since the Court ruling on 19th March 2014 the number of requests for authorisations has risen significantly The number in June 2014 was 224 compared to 12 in June 2013 Finding the capacity needed to deal with the implications of the Ruling has proved equally problematic for the Court of Protectionrsquo

4 The Cabinet Report goes on to state at point 19 Appendix A that

In these circumstances a planned approach to implementation through appropriate prioritisation has been the only realistic option Additionally the

Health amp Social Care Directorate has made representations through ADSS Cymru to ensure that the issues and the increased costs are also being considered by Welsh Government

5 The Cabinet Report highlights that research shows that typically c 44 of care

home residents require a DoL assessment In addition there may be service

users living in supported living or adult placement without capacity to consent to

their care and where the care regime may constitute a deprivation of liberty

Additionally the local authority needs to make arrangements for residents who

are self-funding because it remains the responsible supervisory body for them

6 The Cabinet Report highlights that are resources issues that flow from the

Supreme Courtrsquos ruling which amounts to a total potential additional cost of

pound146700 in terms of providing the resource to undertake the assessments

Additionally point 32 Appendix A states that

The local authority is at risk of legal challenge where we provide or commission social care that amounts to an unauthorised or incorrectly authorised deprivation of liberty Recent advice from Weightmans Solicitors state that damages for unlawful deprivations can amount to sums in the region of pound180 to pound300 per day which may be backdated to the Supreme Court judgement

7 As the report is for information only no Cabinet Members or Senior Managers will

be present at Committee for this item

Financial Implications 8 There are no direct financial implications arising from this report However

financial implications may arise if and when the matters under review are

implemented with or without any modifications

Legal Implications

9 The Scrutiny Committee is empowered to enquire consider review and

recommend but not to make policy decisions As the recommendations in this

report are to consider and review matters there are no direct legal implications

However legal implications may arise if and when the matters under review are

implemented with or without any modifications Any report with recommendations

for decision that goes to CabinetCouncil will set out any legal implications arising

from those recommendations All decisions taken by or on behalf of the Council

must (a) be within the legal powers of the Council (b) comply with any procedural

requirement imposed by law (c) be within the powers of the body or person

exercising powers on behalf of the Council (d) be undertaken in accordance with

the procedural requirements imposed by the Council eg Scrutiny Procedure

Rules (e) be fully and properly informed (f) be properly motivated (g) be taken

having regard to the Councils fiduciary duty to its taxpayers and (h) be

reasonable and proper in all the circumstances

RECOMMENDATION The Committee is recommended to note the briefing report and consider the future

scrutiny of this item

MARIE ROSENTHAL County Clerk and Monitoring Officer 17th December 2014

CITY OF CARDIFF COUNCIL CYNGOR DINAS CAERDYDD

CABINET MEETING 11 DECEMBER 2014

DEPRIVATION OF LIBERTY SAFEGUARDS

REPORT OF DIRECTOR OF HEALTH AND SOCIAL CARE

AGENDA ITEM 9

PORTFOLIO HEALTH HOUSING amp WELLBEING (COUNCILLOR SUSAN ELSMORE)

Reason for this Report

1 To update Cabinet on the implications of a Supreme Court Ruling inMarch 2014 regarding implementation of the Mental Capacity Act 2005and the Deprivation of Liberty Safeguards 2009

Background

2 Article 5 of the European Convention on Human Rights states thatEveryone has the right to liberty and security of person and that No oneshall be deprived of his liberty save for criminal proceedings and theMental Health Act 1983

3 In 2009 the Deprivation of Liberty Safeguards (DoLS) were introducedinto the Mental Capacity Act 2005 to provide an additional legalframework which allows proportionate restraint and restrictions to beused on a patient (who lacks mental capacity) in a hospital or a residentof a care home - but only if they are in a persons best interests [Notethe Safeguards are not applicable for people living in domestic settings]

4 If the restrictions and restraint used will deprive a person or their libertythis is unlawful unless authorised by the Supervisory Body or Court ofProtection under the Deprivation of Liberty Safeguards

5 The City of Cardiff Council acts as supervisory body and appoints BestInterest Assessors to determine if the conditions are met to authorise thecare arrangement that deprives a person of their liberty under thesafeguards They include

bull the person is 18 or over (the jurisdiction of the Court of Protectionincludes case where the person is aged 16 years and over)

Appendix A

bull the person lacks capacity to decide for themselves about the restrictions which are proposed so they can receive the necessary care and treatment - there is a separate test for this

bull the restrictions would deprive the person of their liberty bull the proposed restrictions would be in the persons best interests and bull whether the person should instead be considered for detention under

the Mental Health Act

6 If any of the conditions are not met the deprivation of liberty cannot be authorised This may mean that the care home or hospital ward has to change its care plan or alternative care must be found

7 If all conditions are met the supervisory body must authorise the

deprivation of liberty and inform the person and managing authority in writing It can be authorised for up to one year Standard authorisations cannot be extended If it is felt that a person still needs to be deprived of their liberty at the end of an authorisation the managing authority must request another standard authorisation

8 Safeguards include the right to representation and rights to challenge authorisations in the Court of Protection without cost and access to independent mental capacity advocates (MCAs)

9 The Cardiff and the Vale Deprivation of Liberty Safeguards (DoLS) Mental Capacity Act Team has been operational since these Safeguards were implemented in April 2009 The teams work has to comply with the Mental Capacity Act 2005 (MCA) and the DoLS Codes of Practice

10 The team provides coordination of Best Interest Assessments advice and support to health and social care teams and training for Assessment Care Management Teams CSSIW-registered care homes and all in-patient sites across the Vale of Glamorgan and Cardiff areas

11 The team currently comprises one full-time administrator and two full-time DoLSMCA Coordinators They have access to 45 Best Interest Assessors from all 3 organisations who complete this work as part of their substantive roles

12 The MCADoLS service is partnership led and managed by the Vale of Glamorgan Council There is a tripartite DoLS Governance Board with representation from Cardiff and Vale University Health Board Cardiff City Council and the Vale of Glamorgan Council at senior management level

Issues 13 On 19th March 2014 the Supreme Court passed judgement on 2 cases -

MIG and MEG (Surrey) and P (Cheshire West) - overturning previous judgements by the Court of Appeal It published a revised test for deprivation of liberty which extended the protection of the Deprivation of Liberty Safeguards and the Court of Protection to a wider population of people being cared for in care homes hospitals and within their own homes

14 The Supreme Court clarified that there is a deprivation of liberty for the purposes of Article 5 in the following circumstances

bull The person is under continuous supervision and control and bull Is not free to leave

15 The Supreme Court also clarified that the purpose and relative normality

of the care regime or the persons compliance or lack of objection to the care regime is not relevant when making a determination about deprivation of liberty

16 The Supreme Court held that a deprivation of liberty in domestic settings

(such as Supported Living eg when someone has their own tenancy and their care is provided by a domiciliary care service and Adult Placement eg adult fostering) where the State is responsible for imposing such arrangements must be authorised by the Court of Protection

17 The effect of these changes provides a substantial increase in the number of people who require the protection of the DoLS or the Court of Protection

18 In common with other local authorities across England and Wales Health amp Social Care services in the City of Cardiff has not been able to ensure that these arrangements have been put in place with immediate effect However the service has listed all those to whom this new ruling applies and has prioritised people for reassessment DoLS Assessment and potential applications to the Court of Protection Since the Court ruling on 19th March 2014 the number of requests for authorisations has risen significantly The number in June 2014 was 224 compared to 12 in June 2013 Finding the capacity needed to deal with the implications of the Ruling has proved equally problematic for the Court of Protection

19 In these circumstances a planned approach to implementation through appropriate prioritisation has been the only realistic option Additionally the Health amp Social Care Directorate has made representations through ADSS Cymru to ensure that the issues and the increased costs are also being considered by Welsh Government

Local Arrangements for managing the DoLS Process 20 The DoLS team is jointly funded by the City of Cardiff Council the Vale

of Glamorgan Council and the Cardiff amp Vale University Health Board according to the formula shown in Table 1 (based on predicted workload demand) The cost of any additional resources in the DoLS team would be distributed across the three organisations

Table 1 Organisation Proportion Total Cost Vale of Glamorgan 1465 pound20510 City of Cardiff 4074 pound57036 Cardiff and Vale UHB 4461 pound62454

21 The number of people living in the City of Cardiff whose care arrangement is potentially depriving them of their liberty as defined by the new test will increase significantly under the Ruling Table 2 shows comparative figures between actual numbers for 201314 and predicted numbers for 201415 demonstrating the increase in the number of Best Interest Assessments needed

22 The City of Cardiff supervisory body is currently arranging care for 1350

people in care homes and this prediction is based on that figure This prediction is based on 44 (Ref McDonald 2007) of people in care homes being considered to be included under the new ruling Additionally the local authority would need to make arrangements for residents who are self-funding because it remains the responsible supervisory body for them This has not been taken into account in the figures set out in Table 2 because we do not know how many of the approximate 1500 care home beds in the City of Cardiff are occupied by self-funding residents

Table 2 Organisation Care

Home (201314)

Hospital (201314)

Care Home (Q1 amp Q2 201415)

Hospital (Q1 amp Q2 201415)

City of Cardiff 20 0 594 0 Cardiff and Vale UHB

0 63 0 480

Vale of Glamorgan 8 0 196 0 23 The implications of this rise in demand in terms of staff time are

considerable The partnership has recently trained an additional 28 Best Interest Assessors (BIAs) to undertake DoLS assessments as part of the Cardiff and Vale rota The rota will be revised so that each BIA will undertake an average of 15 assessments per year As each assessment can take up to 15 hours to complete this will have a significant impact on their ability to undertake their substantive role Consequently the remaining DoLS assessments per year will need to be undertaken by the DoLS team The team is not able to maintain compliance with the DoLS statutory timescales and is currently breaching on all Standard Authorisation requests in terms of timescales for authorisation However we are assured that service users are safe and are reviewed through the usual care management and review procedures

24 The team is working through the authorisations in a systematic way

whilst prioritising urgent cases for authorisation The impact of prioritising urgent authorisations such as those people living in residential care or detained within hospital is reducing the ability to prioritise standard authorisations

25 By making other savings and in partnership with the Vale of Glamorgan Council the City of Cardiff Council Health amp Social Care Directorate has provided funding to contribute to one additional Best Interest Assessor to work within the DoLS team This funding is initially for one year and

funded from the under spend on existing HampSC establishment We are waiting confirmation from the Local Health Board that they will provide funding for another Best Interest Assessor

26 The DoLS process also requires an assessment by a specially trained

medical practitioner The additional cost of commissioning this resource is considerable as shown in Table 3 below

Table 3 No of Section 12

Assessments Total Cost to Authority

Cardiff 594 pound108108 Vale of Glamorgan 196 pound35868 Cardiff and Vale UHB 480 pound87360

27 Following a prioritisation exercise undertaken by the Cardiff Learning

Disability service and the Vale of Glamorgan Learning Disability service we have identified a number of people living in supported living or adult placement without capacity to consent to their care and where the care regime may constitute a deprivation of liberty as shown Table 4

Table 4

Area Number of Supported Living Places

Total number of people requiring DoLS 50

Cardiff 345 172 276 Vale of Glamorgan

168 81 135

28 It should be noted that people living in supported accommodation stand

outside the Deprivation of Liberty Safeguards so care managerscare coordinators for all identified individuals should consider an application to the Court of Protection for each authorisation of the care regime Each service area is undertaking a review of all relevant cases and prioritising applications accordingly The Supreme Courts decision is also seen as applying to situations where the person without capacity lives at home in circumstances which fall within the definition in paragraph 7 Where the Authority is providing care at home that amounts to deprivation of the persons liberty this must be approved by the Court of Protection

29 The Directorate has sought independent legal advice on a regional basis

across South East Wales in relation to the potential Court of Protection applications for people living in domestic settings and is advised that a test case of four people living in supported accommodation that are being deprived of their liberty within this financial year with an anticipated cost of pound6000

30 A review of the remaining people who are potentially being deprived of their liberty in domestic settings will be undertaken within Cardiff

following this test case and in consultation with the regional collaboration and may delivering increased costs in future years

31 The total additional estimated annually recurring costs for the City of Cardiff Council taking account of all these measures is likely to be pound146700 as demonstrated in Table 5 and are include the legal costs of existing cases in 201415 being pursued with the Court of Protection (CoP) It should be noted that these costs will increase significantly as more cases are presented to the CoP in 201516 and future years

Table 5

Additional Service Cost Contribution to Best Interests Assessment pound32592 Cost of Section 12 Doctor Assessments pound108108 Cost of 4 additional Court of Protection applications (based on an uncontested hearing) Costs for contested hearings will be considerably more

pound6000

Total Potential Cost pound146700 32 The local authority is at risk of legal challenge where we provide or

commission social care that amounts to an unauthorised or incorrectly authorised deprivation of liberty Recent advice from Weightmans Solicitors state that damages for unlawful deprivations can amount to sums in the region of pound180 to pound300 per day which may be backdated to the Supreme Court judgement

National Review of Deprivation of Liberty Safeguards 33 The National Review of the use of Deprivation of Liberty Safeguards

(DoLS) in Wales was published on 3rd November 2014 following a wide ranging inspection on the use of the Safeguards across Wales The City of Cardiff Councilrsquos arrangements for DoLS were inspected as part of this review

34 The Review made the 10 recommendations in relation to quality

assurance and governance information and awareness raising and workforce development and training The City of Cardiff Council has representation on the Welsh Government Expert Reference Group working on these issues from an all Wales perspective A copy of the National Review and the Cardiff Review can be found appended to this report

Implications for the City of Cardiff 35 An Equality Impact Assessment showed that the positive interpretation of

the revised test for Deprivation of Liberty protects every persons rights as defined under Article 5 of the European Convention on Human Rights

Reason for Recommendations 36 To ensure that Cabinet is updated on actions being taken arising out of

the change in the law following the Supreme Court Judgement further that cabinet is aware of the risks in respect of this judgement and the costs likely to arise from it

Legal Implications 37 The Local Authority may face legal challenges in relation to unlawful or

incorrectly authorised deprivations of liberty if appropriate applications are not made Claimants may also seek to claim financial compensation

38 If it proves necessary to make a large number of applications to the Court

of Protection this will generate a significant amount of legal work for which there are no currently allocated resources

39 The legal position in relation to children of 16 and over who are placed for educational reasons are looked after in residential childrenrsquos homes or foster care settings or for care leavers who are placed in supported independent living settings is not clear The Cheshire West case does not clarify the position for this group of young people who may or may not have capacity and case law re the deprivation of liberty of minors was not referred to in the judgment Itrsquos understood that Childrenrsquos Serviced has initiated a review of those children for whom this may have implications with a view to organizing proportionate and timely action if appropriate Childrenrsquos Services may want to run a test case concerning a child along with any that are issued in relation to adults

Financial Implications 40 The annual recurring costs associated with the implementation of the

Supreme Court Ruling in relation to Health amp Social Care are set out in table 5 to this report and include pound32592 as a contribution to the provision of additional resources for undertaking Best Interest Assessments and pound108108 to fund the on-going cost of Section 12 Doctor Assessments In addition in the current financial year a cost of pound6000 has been identified in relation to legal costs based on four additional Court of Protection (CoP) applications Legal costs associated with CoP applications are likely to increase significantly in 201516 and future years as additional applications are made in order to meet the Councils statutory responsibilities The costs will be dependent on the number of applications made and the ability of the Court of Protection to hear them The Council will be at risk of legal challenge where it provides or commissions social care that amounts to an unauthorised or incorrectly authorised deprivation of liberty This could result in the payment of damages which may be backdated to the Supreme Court Judgement It is also anticipated that there may be costs associated with children aged 16 or over who are placed for educational reasons in residential schools or for looked after children placed in residential childrenrsquos homes or foster care settings or for care leavers who are

placed in supported independent living settings The impact of the ruling in these areas is currently being reviewed

41 The budget implications associated with the implementation of the

Supreme Court Ruling will be considered as part of the Councils 201516 budget process with any additional costs in Health amp Social Care in the current financial year being charged against existing directorate budgets

HR Implications 42 There are limited HR implications as the service is operated through the

Vale of Glamorgan Council meaning that Cardiff Council does not directly employ members of this team

43 The Directorate currently employs 20 social work staff across Health amp

Social Care who are trained to act as Best Interest Assessors as part of the DoLS rota The Council recognises that employees are undertaking these duties in addition to their normal workload and supervision will be key to ensure that the staff receive appropriate support and that their workloads are managed

RECOMMENDATIONS Cabinet is recommended to 1 note the implications of the Supreme Court Ruling and the potential

increased risk of legal challenge to local authorities

2 take into account the increased financial liabilities placed upon the Council as a result of the Supreme Court Ruling when considering the budget for Health amp Social Care Services in 201516

SIAcircN WALKER Director of Health amp Social Care 5 December 2014 The following appendices are attached Appendix 1 - A National Review of the use of Deprivation of Liberty Safeguards

(DoLS) in Wales Appendix 2 - National Review of the use of Deprivation of Liberty Safeguards

(DoLS) in Wales 2014 City and County Cardiff County Council Cardiff amp Vale University Health Board

April ndash May 2014

A National Review of the use of Deprivation of Liberty Safeguards

(DoLS) in Wales

Appendix 1

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Copies of all reports when published will be available on our website or by contacting us

In writing

Print ISBN 978 1 4734 2418 0

Digital ISBN 978 1 4734 2416 6

WG23472

CSSIW National OfficeGovernment BuildingsWelsh GovernmentRhydycar Business ParkMerthyr TydfilCF48 1UZ

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Or via Phone 0300 7900 126 Phone 0300 062 8163 Email cssiwwalesgsigovuk Email hiwwalesgsigovuk Website wwwcssiworguk Website wwwhiworguk Joint Inspectorate Website wwwinspectionwalescom

The National ReviewThe Mental Capacity Act 20051 (MCA 2005) provides the statutory framework for acting and making decisions on behalf of people who lack the capacity to make decisions for themselves The Deprivation of Liberty Safeguards2 (DoLS) were subsequently introduced to provide a legal framework for situations where someone may be deprived of their liberty within the meaning of article 5 of the European Convention of Human Rights (ECHR) The safeguards can be applied to individuals over the age of 18 who have a mental disorder and do not have the cognitive ability (mental capacity) to make decisions for themselves

The national review was carried out as part of Care and Social Services Inspectorate Wales (CSSIW) and Healthcare Inspectorate Wales (HIW) monitoring of DoLS in Wales CSSIW and HIW made a commitment to undertake further work during 201314 to examine the application and effectiveness of DoLS practice following the publication of the third annual monitoring report 201112

The objectives were as follows

bull To establish whether ldquothe Safeguardsrdquo are effective in keeping people safe and that the Relevant Personindividuals are not being deprived of their liberty unnecessarily or without appropriate safeguards in place

bull To review how the DoLS Code of Practice is being implemented in practice and to determine whether the guidance should be revised and updated

bull To investigate what contributes to inconsistencies in the use of DoLS across Welsh Councils and Local Health Boards (LHBs)

bull To identify if health and social care practitioners have the awareness knowledge and skills to fulfil their respective responsibilities to effectively apply and manage DoLS when appropriate

bull To understand the experience of individuals and carers

bull To identify and report good practice

1 See Glossary2 See Glossary

What was working well

bull The Supervisory Bodies3 DoLS co-ordinators were the linchpin of the system and it was often their personal commitment that had the biggest impact on the quality and quantity of applications This was true both in LHBs and councils and accessibility approachability and consistency of advice were essential qualities

bull The Best Interest Assessors4 (BIAs) are a skilled and valuable resource and across Wales there are a range of experienced professionals undertaking this role They have a significant impact on influencing the practice of their colleagues as they act as an internal resourcechampion within their teams and service areas In this way they make a great contribution to the embedding of the five principles of the MCA into the working culture and practice of health and social teams

bull There were some effective health and social care partnership arrangements in place for DoLS which made the best use of resources such as BIAs and supported a shared multi-disciplinary approach to some very complex cases

bull Several authorities and partnerships have in place a DoLS good practice forum which meets periodically in order to share learning from complex cases and consider emergent case law It would be beneficial to consider how to engage Managing Authorities in this or a similar forum

bull There were some very good examples of localised policies and procedures in place including examples of exemplar forms which illustrated what level of detail was required and provided help with language and terminology

bull The governance arrangements seen in the LHBs were generally clear and robust with identified DoLS signatories and a clear separation between Supervisory Body and Managing Authority functions

bull Where Safeguards were in place they had contributed to supporting people in very challenging circumstances and were particularly effective where there were bespoke conditions aimed at working towards reducingremoving the deprivation

What needed to improve The use of conditions5 was very variable and some areas rarely used them which meant that a deprivation had been authorised but not enough was being done to seek a less restrictive solution for the Relevant Person Equally the very short duration of some authorisations had meant that the Relevant Personrsquos situation had not changed before further authorisations were due

Recommendations

1 Supervisory Bodies should audit their current practice to ensure that conditions are used where necessary and that these are focused on improving outcomes for the Relevant Person including reducing or removing the deprivation

2 Supervisory Bodies should ensure that the duration of the DoLS authorisations are compatible with working towards the least restrictive option

The Managing Authorities 6 especially but not exclusively care homes were not always aware of their responsibilities under DoLS and relied heavily on the Supervisory Bodies to prompt and manage the process This meant that the quality and quantity of the applications was varied even between health and social care settings where the needs of the people were very similar Some Managing Authorities thought that making a DoLS application would reflect badly on their organisation and did not understand that they demonstrate a proactive and preventative approach to supporting people who do not have mental capacity to make decisions about their care and support arrangements

Information for the public was available but not always in an accessible format It was suggested by carers and other stakeholders interviewed during the review that there should be ldquoeasy readrdquo versions of the Code of Practice available and that it should be circulated more widely in particular to the carersrsquo organisations

Recommendations

3 Councils and LHBs should ensure that the MCA and DoLS are reflected in their contracts service specifications and monitoring arrangements with Managing Authorities including requirements for mandatory training and how the principles of the MCA are embedded in the day-to-day care and support arrangements

4 Supervisory Bodies should develop robust quality assurance and reporting mechanisms to ensure that applications assessments and authorisations comply with legislation guidance and case law

5 Supervisory Bodies and Managing Authorities should ensure that information about DoLS and the MCA is readily available in a range of formats

The training and skills development for staff involved in the delivery of the MCA and DoLS was very fragmented Managing Authorities need to have reliable access to training and ongoing professional support which is focused on their particular role and responsibilities For example DoLS training was not always mandatory and was sometimes combined with

safeguarding into a single session This can cause confusion and may contribute to the variability in the identification of deprivations by Managing Authorities which was very concerning

The recruitment of BIAs has been approached very differently across Wales and not all Supervisory Bodies had access to sufficient numbers or the necessary range of experience and professional skills The BIA role was perceived as an ldquoadd onrdquo and BIAs often had to negotiate with their manager to be released to undertake the assessments

The training for BIAs is also accessed in different ways across the Supervisory Bodies in Wales This means that some courses being accessed are not accredited and other Supervisory Bodies are accessing the courses that are still accredited in England

Recommendations

6 The Supervisory Bodies should have in place a workforce development strategy to ensure that they are able to meet the requirements of the MCA DoLS legislation and the Supreme Court Judgment This should include leadership and management workforce capacity recruitment and retention skills development integrated working and workforce regulation across the whole DoLS pathway including Managing Authorities

7 An accredited BIA training programme which provides the practice standards and capabilities to fulfil the role is required BIA capacity will need to be increased to ensure that Wales sustains access to the appropriate quantity and range of professionals to carry out this function

The number of referrals to Independent Mental Capacity Advocates7 (IMCA) was very low overall across Wales The role of the IMCA in supporting and representing the Relevant Person and their representative through the complex decision making process is vital but was not actively promoted by some Supervisory Bodies

Recommendations

8 Supervisory Bodies should develop information for the public their staff and Managing Authorities that promote the role of the IMCA and encourage a better understanding of their potential contribution to supporting vulnerable people in often very challenging circumstances

The governance arrangements within those councils that have both Supervisory Body and Managing Authority functions are not always clearly defined and separated as required in the Code of Practice Supervisory Body signatories were not always at the level you would expect given the significance of the legislation and impact on the Relevant Person

Supervisory Bodies were asked whether DoLS activity was reported within their local performance monitoring arrangements as part of the survey component of the national review Eight organisations stated that this information was not reported and of those that did the responses showed that monitoring was not carried out at a consistent level However increasingly this activity is being reported into the Adult Safeguarding Board arrangements and to Scrutiny Committees within councils and Executive Boards of the LHBs This is an

7 See Glossary

important shift which illustrates a change in culture across health and social care towards protecting the rights of vulnerable adults and preventing unnecessary restrictions and deprivations

Recommendations

9 Governance arrangements must be clearly defined by each Supervisory Body and include where applicable how their functions are separated and at what level of management the DoLS Supervisory Body signatories sit

10 Consistent reporting arrangements for DoLS should be established as part of the performance monitoring arrangements within the Supervisory Bodies and by Adult Safeguarding Boards

IntroductionThe national review took place in April and May of 2014 and involved an electronic survey of the LHBs and local authorities in Wales and fieldwork in all the LHBs and one local authority on each LHB footprint between April and May 2014 This involved looking in detail at a selection of DoLS applications interviewing the Relevant Person and their Representative8 (RPR) families managers and staff in health and social care and focus groups with stakeholder organisations The review case tracked 84 applications which was 13 of the total number of applications made in 201314

The fieldwork took place shortly after the Supreme Court handed down a judgment in the case of P and Cheshire West which has led to an increase in DoLS applications The judgment clarified the definition for DoLS and introduced an ldquoacid testrdquo which states that if a person is under constant supervision and control and is not free to leave then they are deprived of their liberty This report provides an overview of the survey results fieldwork and use of DoLS across Wales during this period under the five domains used in the inspection framework

1 Quality of applications amp assessment

Identification and application

The Supreme Court Judgment has clarified the factors that should be considered when determining when DoLS is necessary which has become known as the acid test At the time of the review the threshold for an application was not always clear or understood by the Managing Authorities or other third parties Differing interpretations of the guidance had contributed to inconsistencies in applications and the number of applications in Wales remained lower than expected given the increasing number of people both in a care home and in hospital who have complex needs which includes a cognitive impairment This indicates that previously a number of people who should have been supported by having DoLS in place were not

In the majority of care homes visited as part of the review knowledge of MCA and DoLS and confidence in its use was limited Managers and staff stated that they were heavily reliant on their local authority Supervisory Body to identify restrictions and potential deprivations often at the point of admission and support them through the process Their lack of awareness of their responsibilities to identify and use urgent authorisations where necessary was very concerning There were a small number of exceptions which were often those settings which specialise in supporting people with more complex challenging behaviour or who had previous experience of making DoLS applications Some care settings make several applications each year and others none at all even though the needs of their residents were very similar

The question of who should be carrying out capacity assessments was raised with inspectors on a number of occasions and we saw good examples of care homes that were checking a personrsquos capacity on admission and at subsequent reviews Some councils were very successful

8 See Glossary

at getting the MCA and DoLS message out to their care home constituency and in supporting them through the process whilst others did not take a partnership approach and expected the care homes to take responsibility

There was also a lack of understanding and awareness about DoLS amongst staff in some hospital settings although this was beginning to change The Managing Authorities within hospitals considered the DoLS application process to be overly complex and lengthy The quality of the applications was consequentially very varied and was most often prompted as part of hospital discharge planning

There was also a perception articulated by some health staff that DoLS had negative connotations and that an application would reflect badly on their organisation In addition there tended to be a focus on patients who demanded andor attempted to leave and other considerations such as access to family members were not taken into account It appears therefore that the application of DoLS has become a matter of freedom to leave rather than the freedom to fulfil other aspects of their lives It was also noted that the NHS has under its care in a range of settings a number of people who were previously in long-term hospital beds but whose care arrangements were often very restrictive and DoLS applications had not been considered

There was no standard or consistent approach to the DoLS application process across Wales However in areas where higher numbers of applications were made the process tended to be clearer and well defined Some Supervisory Bodies had a system in place for quality checking applications but Inspectors saw a number of errors and omissions in the documentation which could render them invalid andor subject to legal challenge

Responsiveness amp quality of assessment

The DoLS application consists of six assessments which have to be completed by two separate professionals with appropriate qualifications within prescribed timescales The majority of the assessments seen were detailed and thorough with all elements completed as required by the Code of Practice There were a number of examples of highly complex cases where the Mental Heath Act 1983 had been considered alongside MCA and DoLS The assessments on the whole were also completed within the timescales required which can be challenging as it is estimated by BIAs that inspectors interviewed that each assessment can take between 10 and 15 hours

Pen y Bont Court Care Home

This care setting had developed a checklist tool to be used on the day of admission or when their circumstances change for people who may not have capacity This tool helped them to identify potential deprivations of liberty and take suitable actions such as applying for an urgent andor standard authorisation contacting the adult safeguarding team or social worker

However in one area with a high volume of DoLS there were problems in completing the assessments within the timescales and Managing Authorities had had to extend urgent authorisations This was exacerbated by the use of very short authorisations which is considered to be good practice as the Code of Practice says authorisation should be for the ldquoshortest period possiblerdquo However we saw examples of situations where the short duration of the authorisation had meant that the Relevant Personrsquos situation had not changed before another authorisation was due and the DoLS system was under considerable pressure due to the number of reviews generated The focus in these situations seemed to be more on licensing the deprivations rather than seeking a less restrictive alternative The increase in the volume of DoLS applications following the Supreme Court Judgment could increase this pressure to authorise deprivations without seeking alternatives

The Code of Practice was accessible to staff involved in DoLS and was used as a guide for practitioners Managers and staff considered that the DoLS Code of Practice9 should be updated to reflect new case law and also stated that further guidance on how and when to make an application would be welcomed It was suggested that there should be a Wales only Code of Practice as the current version does not necessarily reflect the position in Wales which has significant differences to the arrangements in England In particular the NHS organisations in England no longer have supervisory responsibilities It was also suggested by carers and other stakeholders interviewed during the review that there should be ldquoeasy readrdquo versions of the Code of Practice available and that it should be circulated more widely in particular to the carersrsquo organisations

Court of Protection applications

The review did not focus on Court of Protection applications and none of the cases tracked during the review involved such an application either to review their DoLS or for someone in a setting other than a care home

2 Quality of outcomes

Quality of support amp approaches used within safeguards

Where Safeguards are in place they can contribute to supporting people in very challenging circumstances and are particularly effective where there are bespoke conditions aimed at working towards reducingremoving the deprivation BIAs can recommend conditions to a DoLS authorisation where necessary which could include for example additional staff support or a change in the Relevant Personrsquos care arrangements However in practice conditions were not extensively used in the cases reviewed and where they were they had not always been understood by the Managing Authority as requiring their oversight and application to the Relevant Personrsquos care and support arrangements Inspectors did see a number of very good examples where conditions had been used to great effect to protect an individualrsquos human rights and improve their outcomes

BIAs in social services confirmed that it was possible to commission less restrictive care arrangements where needed for example an alternative placement or additional staffing but Managing Authorities expressed more reservations and said that conditions had to be ldquorealisticrdquo

9 See Glossary

The outcomes for patients in hospitals who had been subject to DoLS had generally been positive with a number being supported to return home In some cases tracked there had been a multi-disciplinary approach and detailed planning to transfer the Relevant Person to a care home with the new DoLS authorisation as necessary In cases reviewed where the patient had been under the care of mental health services we were told by the professionals involved that there was a tendency to use the Mental Health Act 1983 in preference to the MCA and DoLS

Monitoring amp reviews

Managing Authorities are required to monitor the outcomes for the Relevant Person including making sure that any conditions are reflected in the care and support arrangements and that qualifying requirements continue to be met The care homes visited were not always aware of their responsibilities to monitor and request reviews and relied heavily on the Supervisory Bodies to prompt them

3 Engaging service users patients amp carers

Voice of individuals carers amp representatives

Inspectors spoke to people involved in DoLS including the Relevant Person (where appropriate) and their carers and representatives about their experiences All the carers spoke very highly of their experience despite being initially put off by the terminology and their concern about the premise of depriving their relative or friend of their liberty Their experience of BIAs was very positive and they felt supported and reassured that their friend or relative was being protected and kept safe One family member asked why the authorisations lasted for such a short time when it was clear that his motherrsquos situation was not going to change and felt this created a lot of uncertainty for the family

In practice the appointment of a RPR was not always approached in a systematic way and in some areas very few had been appointed It was evident that some had made greater efforts to identify RPRs than others It was also highlighted to inspectors that there can sometimes be a conflict of interest between the RPR and the Relevant Person and therefore it is important that the appointment of an IMCA is considered in these circumstances We spoke to a number of people who had acted as the RPR and they stated that they had been kept informed and supported to understand their role and its importance

Cwm Taf University Health Board

During the many months the patient was in the hospital records show that their mental capacity was regularly reviewed with regard to their long-term care and support arrangements A number of standard authorisations were granted during this time and they were eventually transferred to a care home and a DoLS put in place there They were subsequently supported to choose to live in their own home in the community

Access to advice information amp professional support

The number of referrals to IMCAs is very low overall in Wales with a few exceptions There was a perception amongst the organisations providing this service that their role is not promoted or understood by the Supervisory Bodies However arrangements for access to the IMCA services are in place across Wales often on a shared basis with neighbouring authorities and LHBs The majority of the referrals to IMCAs are prompted by the BIAs and working relationships are generally very positive Where IMCAs had been involved the Managing Authorities spoke highly of their knowledge and skills

Inspectors met with a range of stakeholder organisations including those from the third sector and asked about their experiences of DoLS for the people they represented Their knowledge was quite limited and dependent on the nature of their work and if they had had any direct involvement This seemed to confirm that DoLS has not until recently been a high profile issue amongst the wider community and in one area the meeting with stakeholders did not take place as the council and LHB did not consider there to be a suitably representative group

The people we spoke to did generally feel that they had access to the information they needed and in a format that was accessible to them including in the Welsh language both in the LHB and the council The information about DoLS was also widely available in hospitals but less so within care homes Information about complaints and concerns relating to DoLS was not routinely captured by any of the organisations involved in the review

Equality amp diversity

There was evidence that cultural needs had been identified and were reflected in the DoLS assessment and any conditions put in place through the care and support arrangements This included providing the information and documentation in Welsh plus other languages and formats such as Easy Read

4 Quality of workforce

Leadership amp Professional Expertise

The DoLS co-ordinators were found to be the linchpin of the system and it was often their personal commitment and skill that had the biggest impact on the quality and quantity of applications This was true both in LHBs and local authorities The DoLS co-ordination function was often vested in an individual as one of their wider range of responsibilities They acted as the hub together with their business administration support both outward facing to Managing Authorities and internally for the BIAs and Managing Authority functions of their own organisation Accessibility approachability and consistency of advice were essential attributes and we found a number of DoLS co-ordinators who were highly thought of by their peers In the light of the Supreme Court Judgment all organisations are reviewing the capacity and skills required to fully deliver on their DoLS responsibilities

Workforce planning ndash recruitment capacity amp skills

The recruitment of BIAs had been approached in different ways in the organisations we visited Usually it was on a voluntary basis motivated by personal commitment to the principles of the MCA and their own continuing professional development Some areas had shared their BIA resource across health and social care which both facilitated the independence of the BIA assessment from the teamservice which had responsibility for the Relevant Person and also increased the skill and capacity resource pool of BIAs The Code of Practice states that efforts should be made to ensure the BIA undertaking an assessment has the professional experience and skills relevant to the Relevant Personrsquos circumstances and condition eg learning disability Where BIAs were from one aspect of the service such as mental health or one profession such as social work then this meant that nursing occupational therapy and psychology skills and experiences were not available in the BIA pool This is increasingly the situation in England

The BIA role was generally perceived as an ldquoadd onrdquo by the managers and professionals we spoke to and has no particular status unlike the Approved Mental Health Practitioner role for example BIAs stated that they often had to negotiate with their manager to be released to undertake the assessments

There was evidence that the BIAs have a positive impact on the knowledge base of their colleagues as they act as an internal resourcechampion within their teams for DoLS Historically a large number of BIAs were trained but were not used due to the low level of applications especially in some areas Consequently there had been a high ldquodrop outrdquo and some reluctance on the part of individual BIAs to do assessments if they lacked the confidence to undertake what is a very significant function and experience of particular settings and services

At the time of the inspection some health boards had very limited numbers of BIAs at their disposal considering the size of the health boards and the complexity of the needs of some of their patients Similarly there were issues of access to Section 12 doctors in some areas The latter are funded on a fee paid case by case basis and are approved and trained by Betsi Cadwaladr University Health Board on behalf of all the LHBs in Wales

Hywel Dda University Health Board

The LHB had nominated staff who act as DoLS links in the hospital settings visited who were able to for provide advice and support to their colleagues on the application of the MCA and the DoLS safeguards On the site visits it was evident that staff on the wards knew who their link person was and how to contact them for advice on potential DoLS situations

Training of staff amp support for good practice

Training in care homes was provided through the Social Care Workforce Development Programme in some areas In practice accessing training was problematic because the courses are oversubscribed and the difficulty in releasing staff to attend Some individual care organisations also provided in-house training but this was often combined with adult safeguarding training which may partly explain why they do not always understand their specific responsibilities under DoLS The DoLS co-ordinators also delivered a lot of informal training and awareness raising through attendance at team meetings within managing authorities including hospitals and social services

The care home managers we met during the inspection felt that they needed training which focused on developing their decision making skills in applying the MCA to their particular setting and their role in assessing individuals and also more guidance on how to complete the paperwork

The NHS Core Skills Training Framework does not currently include MCA and DoLS training which staff felt had contributed to it having a lower profile The survey undertaken of all the councils and LHBs showed that the majority of DoLS training was delivered through a half to one days training with 42 offering an annual refresher and the remainder requiring an update either every two years (23) or every three years (19) Training in these areas was only mandatory in 69 of the organisations surveyed despite the increasing prevalence of patients with dementia and other conditions which can impair their mental capacity In some areas staff within the councilrsquos adult social care teams had very limited knowledge of DoLS and did not recognise their responsibilities or their contribution to protecting individualsrsquo human rights

A number of partnerships had good practice exchange forums for DoLS which met periodically to discuss and share learning from complex cases and consider emergent case law This was valued and well attended but in one location the forum had not met for some time Similarly the all Wales DoLS co-ordinators group had not been convened in many months These forums will be important in the future to sustain the focus on the MCA and DoLS and the participation of Managing Authorities at this or a parallel forum should be considered

The training of BIAs is approached in different ways across the Supervisory Bodies in Wales There has been a longstanding issue concerning the accreditation of BIA courses which was previously undertaken by the General Social Care Council (GSCC) which closed in 2012 This is now overseen by the Department of Health in England through the college of Social Work however no new courses have been approved since the GSCCrsquos closure in 2012 This means that some courses being accessed by Supervisory Bodies in Wales are not accredited and others send their BIAs to England to access the courses that are still accredited This will need to be addressed promptly in order to increase BIA capacity across Wales and ensure the consistency of BIA expertise and range of skills including ensuring that an appropriate range of professionals have access to BIA training in Wales The BIAs we spoke to did not always receive one-to-one supervision either professionally or clinically for their responsibilities as a BIA

5 Leadership amp governance

Governance amp management arrangements for DoLS

The Code of Practice requires organisations with both Supervisory Body and Managing Authority responsibilities to have clear governance arrangements in place to ensure there is a clear separation of roles In practice this was more obvious in the LHBs all of whom have both functions and so had detailed and explicit governance structures in place There was no appetite in the LHBs to change their role to just that of Managing Authority as it was recognised by the health managers interviewed that the MCA and DoLS had to feature in their day-to-day approach to managing patient care

Of the seven councils reviewed as part of the fieldwork two no longer had in-house care home provision and were therefore not Managing Authorities In those that still have both functions efforts had been made to describe the separation of functions when the arrangements had been put in place in 2009 However since then the merging of management roles and services has meant that these governance arrangements are no longer clearly defined and separated and should be refreshed and updated especially in the light of the Supreme Court judgment

In the majority of organisations reviewed the DoLS co-ordinationsupervisory functions were hosted within safeguarding teams but in others it was located with mental health and learning disability services Inspectors identified that it is not where the service is located that impacts upon the quality of the service delivered rather it is the skills and commitment of the individual designated DoLS lead As DoLS activity increases exponentially following the Supreme Court judgment local authorities will need to consider what management arrangements will be required The lead officermanager for DoLS usually rests at service manager in local authorities and at Deputy Director or Director level in the LHBs

Partnership arrangements are in place

There were some effective partnership arrangements in place for DoLS which made the best use of resources As with other partnerships across health and social care the scale of some LHBs and conflicting priorities makes this difficult to achieve in some areas The majority had achieved a level of partnership working which ranged from joint management a consortium supported by a Memorandum of Agreement and hosted by one organisation to working in collaboration and holding joint practice meetings and sharing training opportunities The potential benefits of a partnership approach were highlighted earlier in this report and it is likely that further work will be required in this area as demand increases and budgets are reduced Where partnership arrangements are in place it is critical that the Executive Boards involved ensure there are clear governance arrangements including a commitment to sustaining the service and ensuring it has the necessary resources

Quality assurance amp performance monitoring

The Supervisory Bodies were asked to describe their reporting arrangements for DoLS as part of the survey The information provided indicated an increasing trend towards reporting into the Adult Safeguarding Board and to Scrutiny Committees within councils and Executive Boards of the LHBs A number of councils also highlighted their intention to include DoLS activity in the Director of Social Servicesrsquo annual report which is presented to Scrutiny Some already did so but in others it was not clear whether DoLS information was captured and how it was monitored by the executive and elected members

Similarly quality assurance mechanisms for DoLS applications were not evident and inspectors found a number of errors in individual applications which had not been picked up at the time by the signatory responsible for authorising the deprivation Inspectors also had some concerns that the Supervisory Body signatory was not always at the level you would expect given the significance of the legislation and impact on the Relevant Person The level and role of designated signatories should be set out as part of the governance arrangements for DoLS in each Supervisory Body

Commissioning amp DoLS

DoLS did not feature in the contract and service specification or in the contract monitoring arrangements between care homes and local authorities seen during the review A number of commissioning managers interviewed were now recognising the importance of capturing this information together with complaints compliments and safeguarding information to build up a picture of their provider constituency In particular where they have commissioned services where you would expect there to be a level DoLS activity because of the complex nature of the service it is concerning that this was not previously monitored by the local authorities or health boards

Carmarthenshire County Council

The council carried out an audit of how effective the BIA service was and how they were working with RPRs This was the first audit of its kind in Wales and included questionnaires which were sent to RPRs and auditing assessment against a tool developed for the purpose The findings were used to inform improvements made in the quality of assessments and the knowledge base of the BIA pool

AppendicesA Glossary

B References

AcknowledgementsCSSIW and HIW would like to thank the individuals carers and all the staff and managers of the councils and LHBs listed below who took part in the fieldwork for all their help and co-operation with this inspection

Local Authorities

Bridgend County Borough Council

Cardiff City Council

Gwynedd County Council

Monmouthshire County Council

Powys County Council

Rhondda Cynon Taf County Borough Council

Local Health Boards

Abertawe Bro Morgannwg University Health Board

Aneurin Bevan University Health Board

Betsi Cadwaladr University Health Board

Cardiff amp Vale University Health Board

Powys Teaching Health Board

Inspectors involved in the fieldwork

Care and Social Services Inspectorate Wales

Chris Humphrey Lead Inspector Jill Lewis Richard Tebboth Phil Mitchell Kevin Barker Ann Rowling Liz Woods Marc Roberts

Healthcare Inspectorate Wales

Evan Humphries Lead Inspector Einir Price Dinene Rixon Rhian Williams-Flew Margot Dos Anjos

Appendix A

GLOSSARY Key terms used in the DoLS Review Reports

Advocacy Independent help and support with understanding issues and putting forward a personrsquos own views feelings and ideas

Assessment for the purpose of the Deprivation of Liberty Safeguards

All six assessments must be positive for an authorisation to be granted

Age An assessment of whether the Relevant Person has reached age 18

Best interests assessment An assessment of whether deprivation of liberty is in the relevant personrsquos best interests is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm This must be decided by a Best Interests Assessor

Eligibility assessment An assessment of whether or not a person is rendered ineligible for a standard deprivation of liberty authorisation because the authorisation would conflict with requirements that are or could be placed on the person under the Mental Health Act 1983

Mental capacity assessment An assessment of whether or not a person has capacity to decide if they should be accommodated in a particular hospital or care home for the purpose of being given care or treatment

Mental health assessment An assessment of whether or not a person has a mental disorder This must be decided by a medical practitioner

No refusals assessment An assessment of whether there is any other existing authority for decision making for the relevant person that would prevent the giving of a standard deprivation of liberty authorisation This might include any valid advance decision or valid decision by a deputy or donee appointed under a Lasting Power of Attorney

Best Interest Assessor A person who carries out a deprivation of liberty safeguards assessment

Capacity Short for mental capacity The ability to make a decision about a particular matter at the time the decision needs to be made A legal definition is contained in section 2 of the Mental Capacity Act 2005

Care Home A care facility registered under the Care Standards Act 2000

Care and Social Services Inspectorate Wales (CSSIW)

Care and Social Services Inspectorate Wales is the body responsible for making professional assessments and judgements about social care early years and social services and to encourage improvement by the service providers

Carer People who provide unpaid care and support to relatives friends or neighbours who are frail sick or otherwise in vulnerable situations

Conditions Requirements that a Supervisory Body may impose when giving a standard deprivation of liberty authorisation after taking account of any recommendations made by the Best Interests Assessor

Consent Agreeing to a course of action ndash specifically in this report to a care plan or treatment regime For consent to be legally valid the person giving it must have the capacity to take the decision have been given sufficient information to make the decision and not have been under any duress or inappropriate pressure

Court of Protection The specialist court for all issues relating to people who lack mental capacity to make specific decisions It is the ultimate decision maker with the same rights privileges powers and authority as the High Court It can establish case law which gives examples of how the law should be put into practice

Deprivation of Liberty Deprivation of liberty is a term used in the European Convention on Human Rights about circumstances when a personrsquos freedom is taken away Its meaning in practice is being defined through case law

Deprivation of Liberty Safeguards (DoLS) The framework of safeguards under the Mental Capacity Act 2005 for people who need to be deprived of their liberty in a hospital or care home in their best interests for care or treatment and who lack the capacity to consent to the arrangements made for their care or treatment

Local Health Board (LHB) Local Health Boards fulfil the Supervisory Body function for health care services and work alongside partner local authorities usually in the same geographical area in planning long-term strategies for dealing with issues of health and well-being

They separately manage NHS hospitals and in-patient beds when they are managing authorities

Independent Hospital As defined by the Care Standards Act 2000 ndash a hospital the main purpose of which is to provide medical or psychiatric treatment for illness or mental disorder or palliative care or any other establishment not being defined as a health service hospital in which treatment or nursing (or both) are provided for persons liable to be detained under the Mental Health Act 1983

Independent Mental Capacity Advocate (IMCA)

A trained advocate who provides support and representation for a person who lacks capacity to make specific decisions where the person has no-one else to support them The IMCA service was established by the Mental Capacity Act 2005 whose functions are defined within it

Local AuthorityCouncil The local council responsible for commissioning social care services in any particular area of the country Senior managers in social services fulfil the Supervisory Body function for social care services

Care homes run by the council will have designated managing authorities

Managing Authority The person or body with management responsibility for the particular hospital or care home in which a person is or may become deprived of their liberty They are accountable for the direct care given in that setting

Maximum authorisation period The maximum period for which a Supervisory Body may give a standard deprivation of liberty authorisation which cannot be for more than 12 months It must not exceed the period recommended by the Best Interests Assessor and it may end sooner with the agreement of the Supervisory Body

Mental Capacity Act 2005 (MCA 2005)

The Mental Capacity Act 2005 provides a framework to empower and protect people who may lack capacity to make some decisions for themselves The five key principles in the Act are

1 Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise

2 A person must be given all practicable help before anyone treats them as not being able to make their own decisions

3 Just because an individual makes what might be seen as an unwise decision they should not be treated as lacking capacity to make that decision

4 Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests

5 Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms

Mental Capacity Act Code of Practice The Code of Practice supports the MCA and provides guidance to all those who care for andor make decisions on behalf of adults who lack capacity The code includes case studies and clearly explains in more detail the key features of the MCA

Mental Disorder Any disorder or disability of the mind apart from dependence on alcohol or drugs This includes all learning disabilities

Mental Health Act 1983 Legislation mainly about the compulsory care and treatment of patients with mental health problems It includes detention in hospital for mental health treatment supervised community treatment and guardianship

Qualifying requirement Any one of the six qualifying requirements (age mental health mental capacity best interests eligibility and no refusals) that need to be assessed and met in order for a standard deprivation of liberty authorisation to be given

Relevant hospital or care home The particular hospital or care home in which the person is or may become deprived of their liberty

Relevant person A person who is or may become deprived of their liberty in a hospital or care home

Relevant personrsquos representative A person independent of the particular hospital or care home appointed to maintain contact with the relevant person and to represent and give support in all matters relating to the operation of the deprivation of liberty safeguards

Restriction of liberty An act imposed on a person that is not of such a degree or intensity as to amount to a deprivation of liberty

Review A formal fresh look at a relevant personrsquos situation when there has been or may have been a change of circumstances that may necessitate an amendment to or termination of a standard deprivation of liberty authorisation

Section 12 Doctors Doctors approved under Section 12(2) of the Mental Heath Act 1983

Standard authorisation An authorisation given by a Supervisory Body after completion of the statutory assessment process giving lawful authority to deprive a relevant person of their liberty in a particular hospital or care home

Supervisory Body A local authority social services or a local health board that is responsible for considering a deprivation of liberty application received from a managing authority commissioning the statutory assessments and where all the assessments agree authorising deprivation of liberty

Supreme Court The Supreme Court is the final court of appeal in the UK for civil cases and for criminal cases in England Wales and Northern Ireland It hears cases of the greatest public or constitutional importance affecting the whole population

Unauthorised deprivation of liberty A situation in which a person is deprived of their liberty in a hospital or care home without the deprivation being authorised by either a standard or urgent deprivation of liberty authorisation

Urgent authorisation An authorisation given by a managing authority for a maximum of seven days which subsequently may be extended by a maximum of a further seven days by a Supervisory Body This gives the managing authority lawful authority to deprive a person of their liberty in a hospital or care home while the standard deprivation of liberty authorisation process is undertaken

Appendix B

GLOSSARY Key references for mental capacity act amp Deprivation of Liberty Safeguards

Mental Capacity Act The Mental Capacity Act 2005 provides a framework to empower and protect people who may lack capacity to make some decisions for themselves

httpwwwlegislationgovukukpga20059contents

Mental Capacity Act Code of Practice

httpwalesgovuktopicshealthpublicationshealthguidancemcaconsentlang=en

The Supreme Court judgment P (by his litigation friend the Official Solicitor) (FC) (Appellant) v Cheshire West and Chester Council and another (Respondents)

httpsupremecourtukdecided-casesdocsUKSC_2012_0068_Judgmentpdf

Deprivation of Liberty Safeguards Annual Monitoring Report for Health and Social Care

httpcssiworgukdocscssiwreport140224dolsreportenpdf

9 ndash 11 April 2014

National Review of the use of Deprivation of Liberty Safeguards

(DoLS) in Wales 2014

City and County Cardiff County Council

Appendix 2

In writing

Digital ISBN 978 1 4734 2465 4

WG23531

NATIONAL REVIEW OF THE USE OF

DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS) IN WALES

City and County Cardiff County Council Cardiff amp Vale University Health Board

9th ndash 11th April 2014

National Review The Mental Capacity Act 2005 (MCA 2005) provides the statutory framework for acting and making decisions on behalf of people who lack the capacity to make decisions for them The Deprivation of Liberty safeguards (DoLS) were subsequently introduced to provide a legal framework for situations where someone may be deprived of their liberty within the meaning of article 5 of the European Convention of Human Rights (ECHR) The safeguards can be applied to individuals over the age of 18 who have a mental disorder and do not have the cognitive ability (mental capacity) to make decisions for themselves This report provides an overview of the use of deprivation of liberty safeguards in this Local Authority (LA) and Local Health Board (LHB) The fieldwork was carried out as part of Care Social Services Inspectorate Wales (CSSIW) and Healthcare Inspectorate Wales (HIW) national thematic inspection of the Deprivation of Liberty Safeguards in Wales The inspection took place shortly after the Supreme Court handed down a judgment in the case of P and Cheshire West which has contributed to an increase in DoLS applications The national review involved a survey of all LHBrsquos and local authorities and 3 days fieldwork conducted in 7 local authorities and all the LHBrsquos between April and May 2014 The findings from the individual inspections will inform a CSSIWHIW national overview report to be published later this year The objectives were as follows -

To establish whether DoLs are effective in keeping people safe and that they are not being deprived of their liberty unnecessarily or without appropriate safeguards in place

To review how the DoLs Code of Practice is being implemented in practice and determine whether the guidance should be revised and updated

To investigate what contributes to inconsistencies in the use of DoLs across the Welsh LArsquos and LHBrsquos

To identify if health and social care practitioners have the awareness knowledge and skills to fulfil their respective responsibilities to effectively apply and manage DoLs when appropriate

To understand the experience of individuals and carers To identify and report good practice

Introduction

Cardiff Council (the Council) and Cardiff amp Vale University Health Board (the UHB) have shared arrangements in place for the management of their supervisory responsibilities for DoLS together with the Vale of Glamorgan Council This has been in place since the introduction of DoLS in 2009 and is based in Vale of Glamorgan Council Offices in Barry The team consists of 1 full time administrator and 2 full time DoLSMCA Coordinators Operational responsibility for the team rests with the Vale of Glamorgan Council through a tripartite steering group consisting of representatives from all 3 organisations The Operational Manager for Mental Health employed by the Vale of Glamorgan Council has the day to day management responsibility for the team on behalf of the DoLS Partnership Board The main functions of the team are -

Coordination and supervision of Best Interest Assessors ( BIAs) Advice and support to health amp social care teams in relation to MCA amp

DoLS To provide training for managing authorities care homes and hospitals

1 Quality of Applications amp Assessment

The identification of current and potential deprivations of liberty by managing authorities (MAs) in care homes in Cardiff and consequent applications are most often triggered by the managing authority themselves and some are triggered at the time of a placement being made by the Social Worker involved However the overall number of applications was very low when considering the number and range of care homes in Cardiff Council area In 201314 the council had 24 applications and the UHB 54 Overall the quality of the Managing Authority applications seen was adequate but some lacked detail and accuracy and had gaps in information This indicates that the managing authorities involved do not fully understand the process and some are unfamiliar with the documentation The DoLS coordinators screen all the applications and supporting paperwork and take the view that it is better to receive applications and act on them rather for them to be perfect in every case Assessments therefore were not always completed as required by the DoLS Code of Practice eg options not deleted as appropriate and dates were missing These omissions could render individual applications invalid which in turn may mean that some people are unlawfully deprived of their liberty at a given point The Council assessment and care management staff interviewed had only a limited understanding of their responsibilities to raise DoLS through reviews or as a potential DoLS when placing people in a care home However the group was small in number and did not include staff from the Learning Disability

Teams who had demonstrated a much greater understanding of DoLS on an individual basis through the cases examined Inspectors found that there was limited understanding of MCA and DoLS amongst health professionals in ward settings where individual patients are viewed as having limited capacity There was also confusion amongst staff between what constitutes a deprivation of liberty and what a restriction and the former is only considered if the individual had made attempts to leave the hospital or expressed a wish to leave the hospital premises before being formerly discharged The staff interviewed across the UHB and social care also reported that they find the MCA complex and burdensome In particular the requirement to make a new application each time a potential DoLS is identified However we found that the awareness of staff on wards such as neurology and older people was greater than the knowledge on general medical wards There was a perception amongst staff mentioned on a number of separate occasions that the MHA ldquotrumpsrdquo the MCA and the former would always be used as the preferred means of dealing with an individual who needs to be deprived of their liberty This is supported by the fact that no DoLS applications had been received from mental health wards and care settings although we were told there are people who were potentially deprived of their liberty and who were not subject to either The joint DoLS team were experiencing challenges in effective operation due to the different IT systems that are in place across Health and Social Care organisations Applications are faxed to the DoLS team and the files relating to each application are then held on paper files This was a difficulty for professionals involved in the care of individualrsquos to establish when a DoLS was in place Arrangements need to be put in place to ensure a DoLS application can be flagged across the different systems to enable professionals to be aware of individualrsquos current position in relation to DoLS Hospital based staff in particular described the difficulties they faced in gaining access to fax machines on a 24 hour basis which has resulted in delayed applications to the Supervisory Body None of the staff interviewed had experience of Court of Protection applications The Court of Protection Team which is based in Cardiff was reported as being very supportive but were not made available for interview during the review 2 Quality of Outcomes

A number of the DoLS applications that were case tracked were very complex and had conditions attached as recommended by the BIA However the conditions were not always understood by the managing authority as requiring

their oversight or reflected in the relevant personrsquos care and support plans including those in hospital Where conditions were being used appropriately they were very creative and effective in reducing the deprivation including supporting the individual to access the community family life and increasing their safety In two of the cases seen very specific conditions were put in place for younger adults who required additional resources this was not reflected in similar situations for older adults The responsibility for monitoring the care and support arrangements of the relevant person rests with the managing authority to make sure that the qualifying requirements are still applicable However in practice the reviews in the Care Homes were prompted by the DoLS coordinator and care management reviews were not integrated with the DoLS review This limited the SBs ability to understand how effective the safeguards and any conditions imposed have been in minimising the time or extent of the deprivation In the UHB staff reported that they had a limited understanding of the DoLS review process however the DoLS Coordinator described steps being taken to address this Within learning disability services a team manager is being put in place to review all service users to make sure they are receiving the care arrangements they need We were told that this has been identified as an opportunity to consider MCA amp DoLS issues as part of this process particularly in view of the Supreme Court judgment Where DoLS have been put in place managers and staff within care homes reported that it had helped them to support people with challenging behaviour more effectively as there was a legal framework in place which had been agreed by a number of professionals and would be reviewed 3 Engaging service users patients and carers

Very few of the cases reviewed had a Relevant Persons Representative (RPR) identified Where they were the relevant person and the RPR had been provided with information about DoLS in the form of a leaflet and access to advice and guidance from the DoLS coordinator The UHB staff reported that they had access to an electronic version of a DoLS information toolkit which could be printed off for patients including an easy read version However not all staff interviewed were aware of this resource The stakeholder representatives interviewed were from the third sector and were limited in number They had limited awareness of the Mental Capacity Act and little knowledge or direct experience of DoLS There was evidence that cultural needs had been identified and were reflected in the assessment and care and support plans A patient with

hearing loss had been appropriately supported to help understand the DoLS application by the BIA in hospital There is a complaints process for the DoLS team as part of the service agreement but we did not see any information on individual complaints or any data The Director for Health and Social Care stated that she and her partners in the tripartite management board would consider any complaints but there have been none to her knowledge 4 Quality of Workforce

The DoLS Coordinator for Cardiff is knowledgeable and experienced and her advice and support is valued by the MAs we spoke to At the time of the inspection the second DoLS Coordinator post was vacant and this inevitably had put additional pressure on the remaining postholder The recruitment process to fill the vacancy was underway Individual MAs in Cardiff have very limited understanding of DoLS and appear to rely heavily on the DoLS Coordinator to support them though the process There was limited evidence that they understand the purpose of DoLS beyond being able to prevent someone from leaving the premises for their own safety The DoLS team do take opportunities to highlight good practice and send out updates across the Council and LHB Leaflets are distributed to the Registered Managers and a survey of all care home providers has been undertaken asking for information and inviting them to be in contact with the DoLS team about training needs and also for support and advice regarding DoLS The Cardiff amp Vale DoLS service has access to 23 Best Interest Assessors (BIAs) which was considered by them to be sufficient for the volume of applications at the time of the inspection The professional background of BIAs was predominately from the NHS and included a wide range of experience from Psychology Occupational Therapy Nursing and Social Work All were very committed to the role of BIA which provides a very strong and rich professional resource for the delivery of the DoLS functions in Cardiff BIAs normally would only be needed once per month to undertake assessments This has previously been a concern in relation to the maintenance of their skills for BIA work BIAs reported that if they are not needed to undertake work while on the rota some will volunteer when an assessment is needed so that they can maintain and develop their experience Where there are BIAs within a health or social care team there is evidence that this raises everyonersquos awareness of MCA and DoLS and they act as an expert resource for the team For example there are BIAs within the Learning Disability teams who have a high level of expertise and provide advice to other team members about DoLs BIAs are recruited on a voluntary basis and

see it as a professional development opportunity In the past it has proved difficult to recruit BIAs as it is seen as an ldquoadd onrdquo to their substantive role and they have to be freed up from their other responsibilities It was pointed out by the BIAs interviewed that Approved Mental Health Practitioners (AMHPrsquos) have access to far more training and support than BIAs The number of referrals to the Independent Mental Capacity Assessor (IMCA) service is very low when compared to the volume of DoLS applications and activity in other areas in Wales Referrals came from the DoLS service or BIAs but there is a perception expressed by the IMCAs that their role is not actively promoted The DoLS team offer training to staff in care homes social services teams and hospitals In 201314 over 300 staff in care homes had been trained but only 22 staff in hospitals across Cardiff and the Vale of Glamorgan had taken up the offer Access to advice and training within the managing authorities themselves was not evident and was not mandatory in the UHB However the UHB did access the DoLS coordinator and also the BIAs who they reported had provided excellent advice and information The Code of Practice has not been made available to staff at Cardiff Council and they have to access and if necessary purchase their own copies Training was provided to social services staff when DoLS was introduced in 2009 but since then it has been delivered on a more ad hoc basis through the DoLS coordinators attending team meetings 78 staff had received some level of training in this way The Code of Practice was also available to staff in the UHB via the intranet

5 Leadership and governance

Annual reports on DoLS had been made to the Strategic Partnership Board however they have focussed on activity and not on outcomes The DoLS team also described the reporting arrangements to the UHB Mental Health Legislation Committee stating that this gives them a greater profile The UHB has in place arrangements to provide a clear separation of their managing authority responsibilities at wardservice level and supervisory body responsibilities at executive level An internal audit of the DoLS teams performance and the quality of assessments has been conducted by the Manager responsible for DoLS and a draft action plan produced This aimed to address future demands but had very ambitious timescales and appeared to rely on the existing Manager and DoLS Coordinators to deliver the actions without any additional resource The Councilrsquos Director of Heath and Social Care has also placed DoLS on the corporate risk register and would like to see better understanding of the issues within the executive board and strengthened governance arrangements across health and social care

The current service specification for residential care nursing care and continuing health care does not require staff in provider organisations to be trained in the MCA or DoLS The quality assurance process by the Council also did not reference MCA or DoLS The Director of Heath and Social Care was familiar with the Code of Practice and its requirements and how they applied to the arrangements in Cardiff The Council does not have directly provided residential care however it does have directly provided supported living accommodation and the Director of Heath and Social Care is the Responsible Individual In order to be compliant with the Code of Practice requirement for separation of the SB and MA roles the Director has made arrangements for the Statutory Director of Social Services to oversee any future issues on deprivation of liberty that might come via Court of Protection in supported accommodation The joint service arrangements for the DoLS team has allowed the three supervisory bodies to ensure sufficient resources are deployed to receive applications and make assessments in a timely manner However individual case follow up after authorisation through care management teams needs further development and also a stronger connection to care management reviews There are multi-disciplinary teams eg mental health learning disability and hospital discharge in place that could facilitate this but the MCA is not embedded into their practice RECOMMENDATIONS - 1 When reviewing the DoLS service resources amp BIA capacity in the light

of the Supreme Court judgment the Council should develop a strategy which ensures the BIA function is established in all adult services and teams and is embedded in assessment and reviews

2 The Council and the Health Board should ensure that Mental Capacity

Act and DoLS training for managers and staff in all relevant social and health care settings becomes mandatory They should reflect the requirement for mandatory training in their contracts with managing authorities and audit the effectiveness of this training

3 The Council and UHB should develop joint systems and processes

which support the effective delivery of the DoLS service including the quality assurance of applications and ensuring that an individualrsquos DoLS status is know to the professionals involved with them

4 The Council and UHB should develop information and tools for their staff

that promote a better understanding of the role of the IMCA and when they should be used

5 The Council and UHB should ensure RPRs are always appointed where

possible and appropriately supported in their role

6 The capacity of the DoLS team should be reviewed by the Council UHB and partners to ensure it has the resources to meet the demand and range of functions it provides particularly in the light of the Supreme Court Judgment

7 The Council and the Health Board should review their engagement with

the relevant person their families and informal carers and implement feedback on the clarity of information already available They should include details of how to express compliments concerns and complaints

Item 10

THE CITY OF CARDIFF COUNCIL AGENDA ITEM 10

Purpose of Report

Item 10 Appendix A

Cabinet 11 Dec 2014 Dep of liberty

CYNGOR DINAS CAERDYDD



Issues

Cabinet 11 Dec 2014 Dep of liberty App 1

Cabinet 11 Dec 2014 Dep of Liberty App 2